EFF Sues to Invalidate FOSTA, an Unconstitutional Internet Censorship Law

We are asking a court to declare the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”) unconstitutional and prevent it from being enforced. The law was written so poorly that it actually criminalizes a substantial amount of protected speech and, according to experts, actually hinders efforts to prosecute sex traffickers and aid victims.

In our lawsuit, two human rights organizations, an individual advocate for sex workers, a certified non-sexual massage therapist, and the Internet Archive, are challenging the law as an unconstitutional violation of the First and Fifth Amendments. Although the law was passed by Congress for the worthy purpose of fighting sex trafficking, its broad language makes criminals of those who advocate for and provide resources to adult, consensual sex workers and actually hinders efforts to prosecute sex traffickers and aid victims.

What FOSTA Changed

FOSTA made three major changes to existing law. The first two involved changes to federal criminal law:

First, it created an entirely new federal crime by adding a new section to the Mann Act. The new law makes it a crime to “own, manage or operate” an online service with the intent to “promote or facilitate” “the prostitution of another person.” That crime is punishable by up to 10 years in prison. The law further makes it an “aggravated offense,” punishable by up to 25 years in prison and also subject to civil lawsuits if “facilitation” was of the prostitution of 5 or more persons, or if it was done with “reckless disregard” that it “contributed to sex trafficking.” An aggravated violation may also be the basis for an individual’s civil lawsuit. The prior version of the Mann Act only made it illegal to physically transport a person across state lines for the purposes of prostitution.

Second, FOSTA expanded existing federal criminal sex trafficking law. Before SESTA, the law made it a crime to knowingly advertise sexual services of a minor or any person doing so only under force, fraud, or coercion, and also criminalized several other modes of conduct. The specific knowledge requirement for advertising (that one must know he advertisement was for sex trafficking) was an acknowledgement that advertising was entitled to some First Amendment protection. The prior law additionally made it a crime to financially benefit from “participation in a venture” of sex trafficking. FOSTA made seemingly a small change to the law: it defined “participation in a venture” extremely broadly to include “assisting, supporting, or facilitating.” But this new very broad language has created great uncertainty about liability for speech other than advertising that someone might interpret as “assisting” or “supporting” sex trafficking, and what level of awareness of sex trafficking the participant must have.

As is obvious, these expansions of the law are fraught with vague and ambiguous terms that have created great uncertainty about what kind of online speech is now illegal. FOSTA does not define “facilitate”, “promote”, “contribute to sex trafficking,” “assisting,” or supporting” – but the inclusion of all of these terms shows that Congress intended the law to apply expansively. Plaintiffs thus reasonably fear it will be applied to them. Plaintiffs Woodhull Freedom Foundation and Human Rights Watch advocate for the decriminalization of sex work, both domestically and internationally. It is unclear whether that advocacy is considered “facilitating” prostitution under FOSTA. Plaintiffs Woodhull and Alex Andrews offer substantial resources online to sex workers, including important health and safety information. This protected speech, and other harm reduction efforts, can also be seen as “facilitating” prostitution. And although each of the plaintiffs vehemently opposes sex trafficking, Congress’s expressed sense in passing the law was that sex trafficking and sex work were “inextricably linked.” Thus, plaintiffs are legitimately concerned that their advocacy on behalf of sex workers will be seen as being done in reckless disregard of some “contribution to sex trafficking,” even though all plaintiffs vehemently oppose sex trafficking.

The third change significantly undercut the protections of one of the Internet’s most important laws, 47 U.S.C. § 230, originally a provision of the Communications Decency Act, commonly known simply as Section 230 or CDA 230:

FOSTA significantly undermined the legal protections intermediaries had under 42 U.S.C. § 230, commonly known simply as Section 230. Section 230 generally immunized intermediaries form liability arising from content created by others—it was thus the chief protection that allowed Internet platforms for user-generated content to exist without having to review every piece of content appearing posted to them for potential legal liability. FOSTA undercut this immunity in three significant ways. First, Section 230 already had an exception for violations of federal criminal law, so the expansion of criminal law described above also automatically expanded the Section 230 exception. Second, FOSTA nullified the immunity also for state criminal lawsuits for violations of state laws that mirror the violations of federal law. And third, FOSTA allows for lawsuits by individual civil litigants.

The possibility of these state criminal and private civil lawsuit is very troublesome. FOSTA vastly magnifies the risk an Internet host bears of being sued. Whereas federal prosecutors typically carefully pick and choose which violations of law they pursue, the far more numerous state prosecutors may be more prone to less selective prosecutions. And civil litigants often do not carefully consider the legal merits of an action before pursing it in court. Past experience teaches us that they might file lawsuits merely to intimidate a speaker into silence – the cost of defending even a meritless lawsuit being quite high. Lastly, whereas with federal criminal prosecutions, the US Department of Justice may offer clarifying interpretations of a federal criminal law that addresses concerns with a law’s ambiguity, those interpretations are not binding on state prosecutors and the millions of potential private litigants.

FOSTA Has Already Censored The Internet

As a result of these hugely increased risks of liability, many platforms for online speech have shuttered or restructured. The following as just two examples:

Two days after the Senate passed FOSTA, Craigslist eliminated its Personals section, including non-sexual subcategories such as “Missed Connections” and “Strictly Platonic.” Craigslist attributed this change to FOSTA, explaining “Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline. Hopefully we can bring them back some day.” Craigslist also shut down its Therapeutic Services section and will not permit ads that were previously listed in Therapeutic Services to be re-listed in other sections, such as Skilled Trade Services or Beauty Services.

VerifyHim formerly maintained various online tools that helped sex workers avoid abusive clients. It described itself as “the biggest dating blacklist database on earth.” One such resource was JUST FOR SAFETY, which had screening tools designed to help sex workers check to see if they might be meeting someone dangerous, create communities of common interest, and talk directly to each other about safety. Following passage of FOSTA, VerifyHim took down many of these tools, including JUST FOR SAFETY, and explained that it is “working to change the direction of the site.”

Plaintiff Eric Koszyk is a certified massage therapist running his own non-sexual massage business as his primary source of income. Prior to FOSTA he advertised his services exclusively in Craigslist’s Therapeutic Services section. That forum is no longer available and he is unable to run his ad anywhere else on the site, thus seriously harming his business. Plaintiff the Internet Archive fears that it can no longer rely on Section 230 to bar liability for content created by third parties and hosted by the Archive, which comprises the vast majority of material in the Archive’s collection, on account of FOSTA’s changes to Section 230. The Archive is concerned that some third-party content hosted by the Archive, such as archives of particular websites, information about books, and the books themselves, could be construed as promoting or facilitating prostitution, or assisting, supporting, or facilitating sex trafficking under FOSTA’s expansive terms. Plaintiff Alex Andrews maintains the website RateThatRescue.org, a sex worker-led, public, free, community effort to share information about both the organizations and services on which sex workers can rely, and those they should avoid. Because the site is largely user-generated content, Andrews relies on Section 230’s protections. She is now concerned that FOSTA now exposes her to potentially ruinous civil and criminal liability. She has also suspended moving forward with an app that would offer harm reduction materials to sex workers. Human Rights Watch relies heavily on individuals spreading its reporting and advocacy through social media. It is concerned that social media platforms and websites that host, disseminate, or allow users to spread their reports and advocacy materials may be inhibited from doing so because of FOSTA.

And many many others are experiencing the same uncertainty and fears of prosecution that are plaguing other advocates, service providers, platforms, and platform users since FOSTA became law.

We have asked the court to preliminarily enjoin enforcement of the law so that the plaintiffs and others can exercise their First Amendment rights until the court can issue a final ruling. But there is another urgent reason to halt enforcement of the law. Plaintiff Woodhull Freedom Foundation is holding its annual Sexual Freedom Summit August 2-, 2018. Like past years, the Summit features a track on sex work, this year titled “Sex as Work,” that seeks to advance and promote the careers, safety, and dignity of individuals engaged in professional sex work. In presenting and promoting the Sexual Freedom Summit, and the Sex Work Track in particular, Woodhull operates and uses interactive computer services in numerous ways: Woodhull uses online databases and cloud storage services to organize, schedule and plan the Summit; Woodhull exchanges emails with organizers, volunteers, website developers, promoters and presenters during all phases of the Summit; Woodhull has promoted the titles of all workshops on its Summit website; Woodhull also publishes the biographies and contact information for workshop presenters on its website, including those for the sex workers participating in the Sex Work Track and other tracks. Is publishing the name and contact information for a sex worker “facilitating the prostitution of another person”? If it is, FOSTA makes it a crime.

Moreover, most, if not all, of the workshops are also promoted by Woodhull on social media such as Facebook and Twitter; and Woodhull wishes to stream the Sex Work Track on Facebook, as it does other tracks, so that those who cannot attend can benefit from the information and commentary.

Without an injunction, the legality under FOSTA of all of these practices is uncertain. The preliminary injunction is necessary so that Woodhull can conduct the Sex as Work track without fear of prosecution.

It is worth emphasizing that Congress was repeatedly warned that it was passing a law that would censor far more speech than was necessary to address the problem of sex trafficking, and that the law would indeed hinder law enforcement efforts and pose great dangers to sex workers. During the Congressional debate on FOSTA and SESTA, anti-trafficking groups such as Freedom Network and the International Women’s Health Coalition issued statements warning that the laws would hurt efforts to aid trafficking victims, not help them.

Even Senator Richard Blumenthal, an original cosponsor of the SESTA (the Senate bill) criticized the new Mann Act provision when it was proposed in the House bill, telling Wired “there is no good reason to proceed with a proposal that is opposed by the very survivors it claims to support.” Nevertheless, Senator Blumenthal ultimately voted to pass FOSTA.

In support of the preliminary injunction, we have submitted the declarations of several experts who confirm the harmful effects FOSTA is having on sex workers, who are being driven back to far more dangerous street-based work as online classified sites disappear, to the loss of online “bad date lists” that informed sex workers of risks associated with certain clients, to making sex less visible to law enforcement, which can no longer scour and analyze formerly public websites where sex trafficking had been advertised. For more information see the Declarations of Dr. Alexandra Lutnick, Prof. Alexandra Frell Levy, and Dr. Kimberly Mehlman-Orozco.

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